Overview
The Massachusetts Department of Agricultural Resources (MDAR) did not conduct sufficient outreach to educate entities that own or maintain rights-of-way (ROWs) on the requirements of the ROW Program and safe use of pesticides to treat unwanted vegetation on ROWs. During out audit, five cities and towns told us that they were unaware of MDAR’s ROW Program. We also noted that MDAR did not maintain a list of entities that own or maintain ROWs. MDAR could use such a list to communicate ROW Program requirements to officials at entities that own or maintain ROWs (such as railroads and energy companies).
Upon our request, MDAR created a list of applicants to the ROW Program that applied during our audit period. This list contained 32 cities and towns and 25 businesses. To identify the cities and towns that did not apply to the ROW Program, we compared the list provided by MDAR to a list of cities and towns in Massachusetts we obtained from the Secretary of the Commonwealth’s website, and we determined that 319 of the 351 cities and towns in Massachusetts did not apply to the program during our audit period. Nine of the 22 cities and towns in our sample did not respond to our inquiries. Of the 13 that responded to our inquiry, 5 of the cities and towns were unaware of MDAR’s ROW Program. Of these 5 cities and towns, 1 told us that it applied pesticides to treat unwanted vegetation on multiple ROWs. The remaining 8 of the 13 cities and towns knowledgeable about the ROW Program learned about it through working with a pesticide applicator or through enrollment in other programs that MDAR offers.
While MDAR publishes program materials on its website and provides these materials to applicants to the ROW Program who directly request them, MDAR does not conduct outreach regarding ROW Program requirements to entities that own or maintain ROWs. A lack of outreach on the safe use of pesticides on ROWs could result in harmful use of pesticides by entities that own or maintain ROWs but that are unaware of ROW Program requirements. Given this, the public may treat unwanted vegetation in an unsafe manner, which could have a negative impact on Massachusetts residents’ health and the environment.
Authoritative Guidance
Section I(4) of MDAR’s “Standard Operating Procedures for the Pesticides Enforcement Program” states, “The [Pesticide Enforcement] Program is committed to educating the general public and licensed applicators on the proper use and handling of pesticides by means of distributing information literature, providing speakers etc.”
In order to educate the general public and pesticide applicators on the proper use and handling of pesticides on ROWs, we believe that MDAR should maintain a list of entities that own or maintain ROWs so it can educate them about the ROW Program. This will help ensure that only licensed applicators are used in the application of pesticides on ROWs within Massachusetts.
Reasons for Issue
According to MDAR officials, applicants to the ROW Program would know about the rules and regulations pertaining to the use of pesticides through neighboring towns and cities. Specifically, applicants would hire a pesticide applicator who is licensed by MDAR and, through MDAR’s pesticide applicator licensing program, made aware of the requirements of the program, including the applicants’ submission of and MDAR’s approval of a Vegetation Management Plan and a Yearly Operational Plan.
Recommendations
- MDAR should conduct outreach to educate entities that own or maintain ROWs on safe pesticide use.
- MDAR should maintain a complete and up-to-date list of entities that own or maintain ROWs.
Auditee’s Response
This finding is solely a policy disagreement with MDAR and is not a proper subject of an audit finding. In addition, MDAR is conducting education consistent with its policy statement, and the finding is inconsistent with the MDAR policy statement and not supported by evidence.
This finding is based solely on a policy disagreement with MDAR and not on any deficiency with respect to any appropriate authoritative requirement. The finding is based on alleged “authoritative guidance” that is not a law, regulation, contract, grant agreement, or any other mandatory requirement in any form: it is solely a general, hortatory statement of MDAR’s program goals. MDAR’s Standard Operating Procedures for the Pesticides Enforcement Program, where the statement is found, does not include any specific procedure or requirement regarding the implementation of education the policy, nor does the Audit Report identify one or suggest that MDAR has failed to comply with it. Instead, the finding is based solely on a disagreement with MDAR about how the Department should carry out its own, purely discretionary, policy goal. As the audit finding is not based on authoritative guidance, and implementation of discretionary goals is not an appropriate subject of an audit, the audit finding should be removed from the Audit Report.
In practice, MDAR is effectively carrying out its general educational policy goal as stated in the [standard operating procedures]. The Audit Report recognizes this: it relies extensively on MDAR educational material, including quoting material from MDAR’s website, and notes that the audit team reviewed other educational material provided by the Department. . . .
See [the “Education on Proper Use of Pesticides” section of this audit report], stating the audit team reviewed “presentation materials prepared by MDAR officials and emails from applicants to the ROW Program that directly requested educational materials regarding the ROW Program. We also reviewed The Pesticide Examination and Licensing Information Bulletin and publications regarding the Pesticide Enforcement Program that MDAR distributed to pesticide applicators as evidence of education provided to pesticide applicators.” . . .
The Department provides extensive training in connection with licensing requirements upon request from companies, associations, retailers, and extension services. Many times, these trainings have hundreds of attendees that include all types of applicators, including those that perform work on rights-of-way (“ROWs”). Through these practices, MDAR is carrying out its expressed intention of educating the general public and licensed applicators regarding the use and handling of pesticides. MDAR’s choices about where and how to deploy educational resources are based on internal, purely discretionary, policy decisions, such as its expert judgment about the audiences and topics of greatest need and its available resources.
Finally, the finding is inconsistent with the statement relied upon as authoritative guidance and unsupported by appropriate evidence. The statement addresses MDAR’s commitment to educating “the general public and licensed applicators”, but the finding is focused on entities that own or maintain ROWs. Entities that own or maintain ROWs may employ or contract with licensed pesticide applicators and therefore may not be the subject of training or outreach. And while MDAR makes efforts to educate non-licensed stakeholders, individuals and entities that are not addressed by statute or regulation are generally outside the scope of MDAR’s stated educational goal. In addition, the finding is based on some cities and towns lacking awareness of the ROW regulations, but lack of awareness does not mean that pesticides are being used or handled improperly by the licensed applicators conducting the work. MDAR makes every effort to ensure regulated activity is conducted in accordance with statutory and regulatory requirements and the audit findings reflect this is occurring. As such, the finding that education of these entities is needed on “safe use of pesticides” is not supported by the evidence presented in the Audit Report. . . .
MDAR appreciates the view of the Office of the State Auditor on how MDAR should conduct its educational initiatives. As noted above, MDAR conducts outreach and education activities regarding the safe use and handling of pesticides pursuant to with its independent, discretionary policy determinations, which are made on the basis of the Department’s expert judgment, available resources, and other factors. These ongoing efforts reach licensed applicators using and handling pesticides within ROWs, as noted above. MDAR will conduct additional outreach and education specific to ROWs as and when it determines that such an effort is appropriate. . . .
MDAR appreciates the view of the Office of the State Auditor on the policy for administration of MDAR’s ROW program but disagrees with this recommendation. Development and maintenance of a list of entities that own or maintain ROWs in the Commonwealth would be time-consuming and would require a significant amount of the Pesticide Program’s limited resources to collect this information and keep it current. ROWs are owned by a wide range of municipal, non-municipal, and private owners and operators, and there is no existing inventory or tool that would enable MDAR to identify them, let alone contact them once identified. Dedication of limited MDAR staff time to this task would undermine the Pesticide Program’s ability to continue and to advance other legal obligations and policy priorities.
Auditor’s Reply
In its response, MDAR states that the ROW Program goals set forth in its “Standard Operating Procedures for the Pesticides Enforcement Program” are at MDAR’s discretion and are not based on external regulations, laws, contracts, or agreements to which MDAR must adhere. We understand that MDAR established the goals in its “Standard Operating Procedures for the Pesticides Enforcement Program” in an attempt to guide its internal operations in accordance with its mission and that these goals are not based on any external regulation. However, generally accepted government auditing standards allow the Office of the State Auditor to examine an auditee’s mission, strategic plan, and goals. Specifically, Section 1.22(a) of the US Government Accountability Office’s Government Auditing Standards states that audit objectives can include “program effectiveness and results” since they “typically measure the extent to which a program is achieving its goals and objectives.”
We acknowledge that MDAR is meeting its goal to educate licensed applicators who wish to use, sell, or purchase pesticides. We also acknowledge that MDAR distributes educational materials to program applicants to the ROW Program, upon their request. However, these entities do not constitute the general public. MDAR reports that it trains “companies, associations, retailers, and extension services” and that “hundreds of attendees” attend these events. These entities are also not the general public but are rather entities that may naturally have close contact with the activities of MDAR.
We believe this wider communication is necessary, not only because MDAR requires it, but also because, in our sample, five cities and towns (ROW owners) were unaware of MDAR’s ROW Program. These ROW owners are less able to hold their pesticide applicators to appropriate standards and may procure applicators without knowing they need to be licensed by MDAR. Further, one municipality told us it applied pesticides to its ROWs without knowing about MDAR’s ROW Program and, therefore, likely did so as an unlicensed applicator. Expanding education to a wider group of the general public, especially ROW owners, is a prudent step and could prevent these predictable risks, which our audit shows were realized when one ROW owner applied pesticides without knowing about MDAR’s ROW Program or licensing, and by other ROW owners that do not know about the program or its requirements.
We recommend that MDAR proactively conduct outreach to entities that own or maintain ROWs, which will ensure greater compliance with and adherence to the requirements of the ROW Program. Not doing so creates a predictable risk that an entity that owns or maintains ROWs hires a licensed applicator that does not follow MDAR requirements, but that this entity is unaware of the applicator's lack of compliance or the steps to take to notify MDAR about this noncompliance. Providing the recommended outreach to entities that own or maintain ROWs is a reasonable internal control that would help reduce this risk.
MDAR also states, “Development and maintenance of a list of entities that own or maintain ROWs in the Commonwealth would be time-consuming and would require a significant amount of the Pesticide Program’s limited resources to collect this information and keep it current.” We acknowledge this recommendation will require MDAR to track, identify, and conduct outreach to entities that own or maintain ROWs. However, there is ample information available from state and federal government agencies that would serve as the population of entities that own or maintain ROWs for MDAR to use. We believe that creating and maintaining a list of entities that own or maintain ROWs would be invaluable in facilitating effective outreach to those entities responsible for complying with ROW Program.
| Date published: | June 12, 2024 |
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